COMMONWEALTH PENNSYLVANIA v. COMMONWEALTH PENNSYLVANIA (04/13/89)

Appeal from the Order of the Pennsylvania Labor Relations Board, in the case of American Federation of State, County and Municipal Employees, Council 13, AFL-CIO v. Commonwealth of Pennsylvania, Department of Public Welfare, Polk Center, Case No. PERA-C-86-359-E.

The Commonwealth of Pennsylvania (Petitioner) appeals from an order of the Pennsylvania Labor Relations Board (Board) finding that Petitioner had committed unfair labor practices by refusing to bargain with American Federation of State, County and Municipal Employees, Council 13, AFL-CIO (Union). Petitioner also appeals from an order of the Board denying its motion for reconsideration.*fn1 For the reasons set forth below, we affirm.

Petitioner, through the Department of Public Welfare, operated the Polk Center, an institution which provides care for mentally retarded children. Because of a decrease in funding, Petitioner decided to furlough a number of employees effective May 2, 1986, including certain employees represented by the Union. In making its decision as to which employees to furlough, Petitioner attempted to select those positions that did not involve the provision of continuous client care and that would not result in a violation of minimum staffing requirements pursuant to state and federal regulations. Petitioner held

[ 125 Pa. Commw. Page 117]

labor management meetings with the Union on March 26, 1986 and April 17, 1986, at which time the parties discussed the proposed furloughs.

Prior to the effective date of the furlough, the Union requested Petitioner to negotiate the impact of the furlough on the wages, hours, and working conditions of the affected bargaining unit employees. The Union also sought information from Petitioner regarding which employees would assume the tasks and duties of the furloughed employees. Petitioner responded that the collective bargaining agreement, to which Petitioner and the Union were parties, governed the issue of furloughs and that it (Petitioner) was responsible only for "meet and discuss" sessions. The bargaining unit employees were then furloughed; some of the work previously performed by those employees was assigned to employees of other bargaining units and to managerial employees.

On July 24, 1986, the Union filed unfair labor practice charges with the Board, contending that Petitioner had violated sections 1201(a)(1), (2), (3), (5), and (9) of the Public Employee Relation Act (PERA)*fn2 by refusing to

[ 125 Pa. Commw. Page 118]

bargain with the Union over the furloughs and transfer of work out of the bargaining unit. The Union also alleged that Petitioner failed to provide the requested information regarding which employees assumed the duties of the furloughed employees.*fn3

After a hearing, the hearing examiner issued a proposed decision and order (PDO) in which he concluded that Petitioner was obligated to bargain over the furloughs and their impact because they were matters of fundamental concern to the employees' interest in wages, hours, and other terms of employment. However, the hearing examiner went on to find that Petitioner had fulfilled its duty to bargain, as evidenced by the provisions of the parties' collective bargaining agreement. Accordingly, the hearing examiner concluded that Petitioner had not committed any unfair labor practices and dismissed the charges.

The Union filed exceptions to the hearing examiner's PDO. By order dated September 15, 1987, the Board sustained the exceptions in part and reversed the hearing examiner's determination that Petitioner satisfied its obligation to bargain with the Union. The Board concluded that although the parties had bargained about the furlough procedures, they had not bargained about the transfer of bargaining unit work to employees outside of that unit. Accordingly, the Board determined that Petitioner had violated sections 1201(a)(1) and (5) of PERA, but had not violated sections 1201(a)(3) and (9) of PERA. The Board ordered Petitioner to cease and desist ...

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